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THE COURT OF APPEALS OF THE STATE OF ALASKA
RODNEY L. WILLETT, )
) Court of Appeals No. A-3943
Appellant, ) Trial Court No. 4FA-S90-
1609CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. )
________________________________) [No. 1240 - July 31, 1992]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Larry C. Zervos, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Following a jury trial presided over by Acting Superior
Court Judge Larry C. Zervos, Rodney L. Willett was convicted of
one count of interference with official proceedings and one count
of assault in the second degree. Willett appeals his
convictions, contending that there was insufficient evidence to
support his conviction for interference with official proceedings
and that the trial court erred in denying his request for a
lesser-included offense instruction on the second degree assault
charge. We affirm Willett's interference with official
proceedings conviction, but reverse his conviction for assault.
Willett's convictions resulted from his assault of
William Golding on the night of May 4-5, 1990. On the evening of
May 4, Golding attended a large, outdoor beer party in Fairbanks.
Golding drank beer for part of the evening and then went to his
car, intending to sleep off the effects of the beer so that he
could drive home. While Golding was passed out in his car,
Willett pulled Golding out, threw him to the ground, and began
kicking him.
Willett landed approximately five to twelve kicks to
Golding's face, shoulders, and torso before bystanders separated
him from Golding. Golding offered no resistance to Willett's
assault, remaining unconscious throughout the episode. Golding's
first recollection was awakening at the hospital, where a friend
had taken him for treatment. As a result of being kicked,
Golding's face was severely swollen; he suffered a cut almost two
inches long on his upper lip and a second cut, approximately an
inch long, over one of his eyes. Both cuts required sutures.
The physician who treated Golding also thought that Golding might
have had a fractured nose.
Willett's attack on Golding was apparently rooted in an
incident that occurred on July 20 of the previous year, when
Willett had become angry with Golding and had damaged Golding's
car. As a result of that incident, Willett had been charged and
convicted of criminal mischief in the second degree, a felony.
Golding had testified against Willett before the grand jury and
at Willett's trial in November of 1989. Willett was subsequently
ordered to pay Golding three hundred and fifty dollars in
restitution. At the May 4 party, a friend of Willett's had
approached Golding and warned him that Willett was at the party
and was angry with Golding; this warning had prompted Golding to
go to his car.
The state charged Willett with assault in the second
degree pursuant to AS 11.41.210(a)(1):
(a) A person commits the crime of assault in
the second degree if
(1) with intent to cause physical injury to
another person, that person causes physical
injury to another person by means of a danger
ous instrument[.]
In charging this offense, the state asserted that Willett's shod
foot was a dangerous instrument.
The state also charged Willett with interference with
official proceedings, in violation of AS 11.56.510(a)(1)(C):
(a) A person commits the crime of
interference with official proceedings if the
person
(1) uses force on anyone . . . with intent to
. . .
(C) retaliate against a witness or juror
because of participation by the witness or
juror in an official proceeding[.]
The state's theory in charging this offense was that Willett had
attacked Golding in retaliation for Golding's previous testimony
against Willett before the grand jury and at trial on the
criminal mischief charge.
After the state completed its case-in-chief at trial,
Willett moved for a judgment of acquittal on the interference
with official proceedings charge, arguing that the state had
failed to produce any specific evidence to establish that the
alleged assault had been motivated by a desire to retaliate
against Golding for his prior testimony. Judge Zervos denied the
motion, concluding that sufficient evidence had been presented to
allow the case to go to the jury. On appeal, Willett renews his
claim that there was no direct evidence produced establishing a
retaliatory intent.
The standard of review to be applied to a denial
of a motion for acquittal is whether fairminded
persons could reasonably differ on whether guilt
has been established beyond a reasonable doubt.
In applying this standard, we must view the
evidence and the inferences to be drawn in the
light most favorable to the state.
Adams v. State, 598 P.2d 503, 509 n.8 (Alaska 1979) (citations
omitted). "The same standard applies to review by an appellate
court." Siggelkow v. State, 648 P.2d 611, 613 (Alaska App.
1982). "No different standard applies when the state's evidence
is circumstantial rather than direct." Snyder v. State, 661 P.2d
638, 641 (Alaska App. 1983).
Applying these principles to the case at hand, we
conclude that Judge Zervos did not err in denying Willett's
motion for a judgment of acquittal. Here, the state proved
Willett's commission of a deliberate and apparently unprovoked
assault on Golding not long after Golding testified against
Willett in a criminal trial. Willett had been convicted and had
recently been ordered to pay Golding restitution.
Although this evidence was not direct proof of
Golding's intent, it is circumstantial evidence from which the
jury could properly infer that Willett acted with retaliatory
purpose. In exercising its discretion to determine the weight
and effect of the evidence presented at trial, the jury was
entitled to give this circumstantial evidence as much weight as
it might have given to direct evidence of intent. Snyder, 661
P.2d at 641. Considering the totality of the evidence in the
light most favorable to the state, we believe that fair-minded
jurors could reasonably have differed on the issue of Willett's
intent. Accordingly, the evidence was sufficient to justify
denial of Willett's motion for judgment of acquittal.
Willett next challenges his conviction for assault in
the second degree. At the close of his trial, Willett asked
Judge Zervos to give the jury a lesser-included offense
instruction on assault in the fourth degree. The judge denied
this request, and the jury found Willett guilty of second-degree
assault. Willett contends that a lesser-included offense
instruction was mandatory under the circumstances.
Under Alaska R. Crim. P. 31(c), a lesser-included
offense is one that is "necessarily included in the offense
charged." See also State v. Minano, 710 P.2d 1013 (Alaska 1985).
A lesser offense is "necessarily included" in the offense charged
when it would be impossible, in the context of the case, to
convict of the charged offense without also convicting of the
lesser. Minano v. State, 690 P.2d 28, 31 (Alaska App. 1984),
rev'd on other grounds, State v. Minano, 710 P.2d 1013 (Alaska
1985).
A trial court is required to give a lesser-included
offense instruction when "there is a factual dispute as to an
element of the greater offense so that the jury could rationally
acquit on the greater offense and convict on the lesser offense."
Johnson v. State, 665 P.2d 566, 569 (Alaska App. 1983). Whether
a factual dispute exists is determined by the "some evidence"
test. Cavanaugh v. State, 754 P.2d 757, 758 (Alaska App. 1988).
See also Nathaniel v. State, 668 P.2d 854-56 (Alaska App. 1983).
"Some evidence" is evidence "`in light of which a reasonable
juror could have entertained a reasonable doubt' as to the
element in question." Folger v. State, 648 P.2d 111, 113 (Alaska
App. 1982)(quoting LaLonde v. State, 614 P.2d 808, 810 (Alaska
1980)).
The "some evidence" test is not a rigorous one:
In order to satisfy the "some evidence"
test, it is not necessary that the defendant
testify or even offer direct evidence in his
own behalf. Some evidence establishing a
dispute as to a factual issue may arise from
weakness in the prosecution's evidence or
from impeachment of its witnesses.
Similarly, circumstantial evidence presented
as part of the state's case-in-chief may give
rise to some evidence of a disputed fact.
Nathaniel v. State, 668 P.2d at 855 (citations omitted). To
determine whether this test has been met in a particular case,
the court must view the evidence in the light most favorable to
the defendant. Paul v. State, 655 P.2d 772, 776 (Alaska App.
1982). As long as there is some evidence to support the
defendant's theory of the case, any weakness or implausibility in
that theory is a matter for the jury, not for the court. See
Folger v. State, 648 P.2d at 113.
In the present case, as we have previously noted,
Willett's charge of second-degree assault required the state to
prove that he intentionally caused physical injury to Golding
with a dangerous instrument (his shod foot). The fourth-degree
assault instruction Willett proposed was based on AS
11.41.230(a)(1), under which he could be convicted for recklessly
causing physical injury to Golding, regardless of whether he used
a dangerous instrument:
(a) A person commits the crime of assault in
the fourth degree if
(1) that person recklessly causes physical
injury to another person[.]
In the context of Willett's case, the sole element that
distinguished second-degree assault from fourth-degree assault
was the use of a dangerous instrument.1 The state does not
dispute that the lesser offense of fourth-degree assault was
necessarily included in the offense of second-degree assault,
with which Willett was charged. The only issue is whether the
element distinguishing the greater and lesser offenses --
Willett's use of a dangerous instrument -- was in dispute, that
is, whether reasonable jurors, viewing the evidence in the light
most favorable to Willett, might have entertained a reasonable
doubt as to whether Willett's foot was a dangerous instrument.
This issue turns on the definition of "dangerous
instrument," which is set forth in AS 11.81.900(b)(11):
"dangerous instrument" means any deadly
weapon or anything that, under the
circumstances in which it is used, attempted
to be used, or threatened to be used, is
capable of causing death or serious physical
injury.
"Serious physical injury," in turn, is defined in AS 11.81-
.900(b)(50):
(A) physical injury caused by an act
performed under circumstances that create a
substantial risk of death; or
(B) physical injury that causes serious and
protracted disfigurement, protracted
impairment of health, protracted loss or
impairment of the function of a body member
or organ, or that unlawfully terminates a
pregnancy[.]
The state insists that there can be no reasonable
doubt that Willett's feet were dangerous instruments under these
definitions; thus, according to the state, Willett's use of a
dangerous instrument was not actually in dispute. In advancing
this argument, however, the state makes the mistake of
interpreting the evidence in the light most favorable to the
prosecution, instead of viewing it, as is required, in the light
most favorable to Willett. Although the evidence indicating that
Willett's feet were dangerous instruments may have been strong,
it was certainly not conclusive; there was at least some
evidence from which the jury might have found a reasonable doubt
on the issue.
Feet, regardless of how they are shod, are not per se
dangerous instruments. They may become dangerous instruments "if
used in such a way as to be capable of causing death or serious
physical injury." Wettanen v. State, 656 P.2d 1213, 1218 (Alaska
App. 1983). Whether a foot constitutes a dangerous weapon when
used to kick another person is a fact-specific determination to
be gleaned from the circumstances surrounding an assault; the
inquiry in each case must center on the manner in which the kick
was administered and the victim's vulnerability to the kick. Id.
See also Konrad v. State, 763 P.2d 1369, 1375 (Alaska App.
1988)(dismissing indictment for third-degree assault where
prosecutor's instruction to the grand jury may have created the
impression that the grand jury had to accept as a matter of law
that defendant's hand was a dangerous instrument; grand jury
should have been alerted to "the need for it to find, based on
the evidence in the case before it, that the defendant used an
instrument in a manner that actually created a substantial risk
of death or serious physical injury.").
The state correctly observes that proof of an object's
use in a manner that actually resulted in serious physical injury
is normally prima facie evidence that the object was a dangerous
instrument. Konrad v. State, 763 P.2d at 1374. Yet, here, the
state did not charge Willett with actually inflicting serious
physical injury on Golding; nor was the evidence so forceful as
to compel a finding of serious physical injury. The state
presented no evidence establishing that Golding's injuries were
actually life-threatening, that is, that they occurred "under
circumstances that create[d] a substantial risk of death." AS
11.81.900(b)- (50)(A). And while the state presented evidence
that Golding's injuries were potentially disfiguring and resulted
in at least some impairment, it did not conclusively establish
that the impairment would be "protracted" or that any
disfigurement would inevitably be "serious and protracted." AS
11.81.900(b)(50)(B).
Viewing the evidence in the light most favorable to
Willett, reasonable jurors could have found that Golding did not
actually sustain serious physical injury.
Nevertheless, referring to the definition of "dangerous
instrument" set out in AS 11.81.900(b)(11), the state insists
that a shod foot is obviously "capable of causing death or
serious physical injury," when used to kick a sleeping man in the
face. The state thus reasons that Willett's foot was necessarily
a dangerous instrument. As we have already indicated, however,
this determination must be based on a case-specific analysis of
the totality of the circumstances; for purposes of applying the
"some evidence" test, that analysis must construe the evidence in
the light most favorable to the defense.
At trial, estimates of the total number of kicks
Willett delivered to Golding ranged from five to twelve; some of
those kicks were aimed at or landed on Golding's shoulders and
torso. Although two prosecution witnesses testified that Willett
was apparently wearing boots, Willett presented circumstantial
evidence indicating that he may have been wearing tennis shoes.
Apart from establishing that Golding had passed out and offered
no resistance, the state presented no evidence indicating that
Willett's kicks were delivered in an unusually dangerous manner.
No medical witnesses testified concerning the degree of risk
inherent in conduct such as Willett's.
Given these circumstances, we do not believe it would
be irrational for a juror to entertain a reasonable doubt as to
whether Willett's feet were dangerous instruments, particularly
if the juror found that Golding had not actually sustained
serious physical injury. The absence of serious physical injury
would itself be circumstantial evidence upon which the jurors
could rely in assessing the degree of risk actually caused by
Willett's conduct.
Considering the totality of the record, we find there
was at least some evidence to support a finding that Willett's
feet were not dangerous instruments. Because Willett's use of a
dangerous instrument was in dispute under the evidence at trial,
we must conclude that the trial court erred in denying Willett's
request for a lesser-included offense instruction on fourth-
degree assault. This conclusion requires reversal of Willett's
conviction for assault in the second degree.2
The conviction for interference with official
proceedings is AFFIRMED. The conviction for assault in the
second degree is REVERSED.
_______________________________
1. The two offenses also differed in their culpable mental
state elements: second-degree assault requires proof of intent to
cause physical injury, whereas fourth-degree assault requires
proof only of recklessness. Recklessness is a lesser culpable
mental state necessarily included in intentional conduct: "If
acting recklessly suffices to establish an element, that element
also is established if a person acts intentionally or knowingly."
AS 11.81.610(c). In the present case, however, Golding did not
dispute the element of intent. Thus, in context, the different
culpable mental requirements did not differentiate the charged
offense of second-degree assault from the lesser-included offense
of fourth-degree assault.
2. On remand, as an alternative to re-trying Willett for
second-degree assault the state should be allowed to request
entry of judgment against Willett for fourth-degree assault. If
the state so requests, the superior court should enter judgment
on the lesser offense unless Willett can demonstrate that he
would be unfairly prejudiced. See Nix v. State, 624 P.2d 823,
824-25 (Alaska App. 1981).
